Shame on You: An Analysis of Modern Shame Punishment as an Alternative to Incarceration

Abstract

Cursed is the ground because of you; In toil you shall eat of it All the days of your life.... Then the Lord God said, "Behold, the man has become like one of Us, knowing good and evil; and now, lest he stretch out his hand, and take also from the tree of life, and eat, and live forever"--therefore the Lord God sent him out from the garden of Eden, to cultivate the ground from which he was taken.(1) Daniel Alvin stood before Georgia State Court Judge Leon M. Braun, Jr., to receive his sentence after being convicted of eight counts of theft.(2) Alvin, husband to a pregnant wife and father of disabled eight-year-old twins, convinced eight victims to hand over money for Atlanta Hawks basketball tickets and a charter bus ride to the game.(3) The tickets and the bus ride never materialized.(4) The police did, however, and charged Alvin with theft by taking.(5) Judge Braun decided to offer Alvin a choice: he could spend six months behind bars, or he could spend five weekends in jail and walk around the Fulton County Courthouse for a total of thirty hours wearing a sign that read "I AM A CONVICTED THIEF."(6) Alvin chose the second option and dutifully carried his sign around the courthouse to the honks and cries of passersby.(7) Although the sentence caused Alvin significant embarrassment in his community, he spent minimal time in jail, and his family stayed together.(8) Judge Braun's decision to offer Alvin an alternative to incarceration represents a growing trend among sentencing judges.(9) Frustrated with the ineffectiveness of traditional forms of punishment, judges are imposing sentences of shame upon convicted criminals more frequently.(10) Ranging from the mundane to the Byzantine, such sentences are not without controversy. Professor Dan Kahan, a supporter of shame punishment, believes that "[s]haming is a potentially cost-effective, politically popular method of punishment" that will enjoy future success because people "want[] more from criminal punishment. They want a message. They want moral condemnation of the offender."(11) On the other side of the debate, Mark Kappelhoff of the American Civil Liberties Union criticizes shame punishment as "[g]ratuitous humiliation of the individual [that] serves no societal purpose at all."(12) Mr. Kappelhoff adds that "there's been no research to suggest [that] it's been effective in reducing crime."(13) While the issues are far from settled, there is no doubt that shame is receiving national attention.(14) This Note discusses and analyzes the modern reemergence of shame punishment as an alternative to traditional sentencing practices and explores appellate court treatment of shaming cases. This Note suggests that judges who incorporate shame into their judicial arsenal as a form of probation, rather than punishment, do so erroneously. Consequently, when offenders appeal these shame-probation conditions, appellate courts subject them to a standard of judicial discretion rather than a more appropriate and more deferential standard of "cruel and unusual punishment" under the Eighth Amendment.(15) Application of the judicial discretion standard leads appellate courts to find that imposition of shame-probation violates the fundamental goal of probation--rehabilitation of the offender.(16) The appellate court then reverses the lower court's shame-probation sentence, and the offender either enters the traditional probation system or must serve a jail sentence. Alternatively, judges could impose shame as a punishment, but many state sentencing guidelines do not provide them with the latitude necessary to justify such sentences.(17) This Note argues that if shaming is to succeed, legislatures must alter the statutory limits of punishment to include a shaming option. The secondary purpose of this Note is to evaluate the efficacy of shaming as a form of punishment. Virtually no empirical data exists detailing the effectiveness of shaming in deterring crime and reducing recidivism rates; however, ample data suggests that current forms of sentencing are ineffective in punishing and/or rehabilitating criminals. …